6 August 2009

Ambach - is it really a provocation defence case?

>R v Ambach (10.07.2009, CRI-2007-004-027374)
I see the High Court ruling on whether the defences of automatism (based on drunkeness) and provocation should be put to the jury is now available.
I must say it is only a partial piece of the jigsaw. As I note in some comments I made on another website, reproduced below, we still can't be confident about the reason for the manslaughter verdict. The ruling corroborates this uncertainty. As automatism was in issue (albeit ruled out as being caused by a drug), it suggests the possibility of a lack of intent due to drunkeness was a very real issue. Although provocation was allowed, reading between the lines, there is some suggestion it was a weak case without a strong foundation.
It will be interesting and important to consider the judge's reasons when she sentences Ambach soon. That might shed some light on whether it is another tragic provocation defence case. However, whether or not this case ultimately turned on provocation, the great dark clouds that hangs over these types of case may be a reason itself to support its abolition anyways.
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I think we might need to take some care at this point about what we read into the Ambach-Brown.
I share the concerns about the egregious way the provocation defence is deployed by the killers of gay men. And I am similarly frustrated that it's taken a high-profile case involving a heterosexual woman to trigger the abolition of a defence when gay groups have been lobbying for abolition for years.
However, I'm not sure we can confidentally assume that Ambach's acquittal turned on provocation. As I read the reports, the case for provocation was quite tenuous and the judge instructed the jury accordingly. A manslaughter verdict may also have arisen from a lack on intent (due, I understand, to claims of intoxication). In some respects we won't know because a jury does not need to provide reasons for it's verdict. But it might be that some light is provided by the judge when she sentences Ambach shortly.
That's not to take away from awfulness of the case or the provocation defence - but categorising is as a successful provocation case might be premature at this point.

Course Outline

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.